[2022] KELEAT 224 (KLR)

Gecheo & 3 others v The Council of Legal Education; Kenya School of Law (Interested Party) (Appeal E025 of 2022) [2022] KELEAT 224 (KLR) (Civ) (24 June 2022) (Ruling)

Neutral citation: [2022] KELEAT 224 (KLR)

Republic of Kenya

In the Legal Education Appeals Tribunal

Civil

Appeal E025 of 2022

R.N Mbanya, Chair, E.Arwa, R.W Kigamwa & S.G. Mureithi, Members

June 24, 2022

(Being an application to compel the Council of Legal Education to supply copies of examination scripts/booklets for the November, 2021 Advocates Training Programme written examinations)

Between

Martha Masara Gecheo

1st Appellant

Barbara Chebet Sang

2nd Appellant

Christabel Akinyi Odhiambo

3rd Appellant

Faith Tabitha Atieno Tuli

4th Appellant

and

The Council of Legal Education

Respondent

and

Kenya School of Law

Interested Party

Ruling

Introduction. 1. Martha Masara Gecheo, Barbara Chebet Sang, Christabel Akinyi Odhiambo and Faith Tabitha Atieno Tuli instituted an appeal against the decision of the respondent Council of Legal Education refraining from causing their gazettement for purposes of admission to the Roll of Advocates. The genesis of the dispute before the tribunal arose from the decision canceling part of the results indicated in the respective provisional transcripts given to the appellants during the November, 2021 Advocates Training Programme written examinations. The respondent assigned the reason for the action as being whereas the said results had indicated that the appellants had passed, they were erroneous due to challenges in it’s (ERP).

2. The appellants also enjoined the interested party the Kenya School of Law to the appeal. The appeal came up for directions on the May 27. May, 2022 before the tribunal with the appellants being represented by Mr Ezekiel Munyua – advocate and the respondent by Ms Criselda Kwambai – advocate. During the said session, the appellants brought an oral application to be allowed to obtain copies of the examination scripts/booklets which they wrote in respect of the examinations results that were in contest. The said booklets are custody of the respondent. The tribunal directed the parties to file written representations by way of submissions on the matter. The appellants and the respondent did through their respective advocates file the submissions and bundles of list of authorities.

The appellants submissions. 3. The appellants position is that through their advocate on 23rd. March, 2022 they made a demand for information to the respondent over the reversal of the pass grades that they had been awarded in the examinations. No response was made by the respondent. On April 22, 2022 they wrote to request for the answer booklets without success and finally they made a third request on May 27, 2022 through the tribunal. Based on the aforegoing they now seek to enforce the right under article 35 of the Constitution of Kenya, 2010 on access to information. They have also called into aid the Access to information Act, no 31 of 2016. They also submit that the denial of access to the examination scripts is a violation of article 10 (2) of the Constitution of Kenya, 2010 as it undermines good governance, integrity, transparency and accountability. They argue that the right to access the information cannot be derogated from on account of policy considerations or internal processes of the respondent. They rely in the decision in Paragon Electronics Limited v Njeri Kariuki, (2021) eKLR in which Justice Antony Mrima held;“Where the Constitution has expressly provided that information held by another person which is required for the exercise or protection of any right or fundamental freedom must be availed, no legislation can suggest otherwise and even if it so happens, any such provision of the legislation should not be accorded any positive application.”They contend that it matters not that the respondent feels that it will set a bad precedent and that the same shall be shared on social media. In fact, such request and sharing information only enhances public participation and transparency in public governance. The appellants by having the booklets seek to question the marking process.

Respondent’s submissions. 4. It is submitted in opposition to the oral application for release of copies of the examination scripts that the release of provisional transcripts showing the appellants had passed all the examination subjects in the November, 2021 written Advocates Training Programme examinations was occasioned by a system generated error. Subsequently, upon detection of the errors, the appellants were informed that they had not passed certain units. The appellants were offered an opportunity to resist the examinations with a waiver of re-sit fees; with an option for a remark with waiver of fees also accorded. The appellants refused both options.

5. The respondent submits further that it has already filed before the Tribunal the cover pages of the respective examination scripts which depicted the actual marks scored by the appellants, however, the appellants have insisted on being given the full booklets which the respondent is opposed to. The respondent is willing to let the appellants to view the answer booklets at the source for them to ascertain their true and legitimate marks. It is submitted that under section 8 (1) (f) of the Legal Education Act, 2012 the respondent is under no obligation to produce, show or provide copies of the answer scripts. It relies in the decision in Republic v Council of Legal Education Exparte Edward Onwong’a Nyakeriga, (2017) eKLR in which Justice George Odunga declined to compel the release of an answer booklet. The respondent also relies on the decision in C O & 87 Others v Kenya National Examination Council & Another, (2017) eKLR in which it was held;“If the argument is that the respondent has not been transparent by producing the examination scripts for them to audit then that is taking their expectations too far as the statute establishing the respondent read together with the Constitution does not envisage such a right to be accorded to the petitioners.”

6. It is submitted that the answer scripts are the property of the respondent. It relies in the decision in Y A Suing through A A M as the guardian and next friend v Attorney General & 4 Others, (2018) eKLR in which it was held,“It is the view and finding of this court that the examination papers are therefore the property of the Kenya National Examination Council and not the petitioners.”

7. It is contended that to grant the request will compromise the integrity of the examination system and it is also a violation of public interest.

Analysis and determination. 8. The appellants have sought the release of copies of examination scripts from the respondent. They rely on article 35 of the Constitution of Kenya, 2010 and the Access to information Act, no 31 of 2016. The tribunal has examined the said law and finds that it is devoid of jurisdiction to address a request made under the said law. Sections 7 - 13 of the Access to information Act, no 31 of 2016 sets out an elaborate process for access to information. Where a person is aggrieved by a decision to deny him information section 14 of the said Act provides for the remedy of a review application made to the Commission on Administrative Justice. The same provides as follows;“(1) Subject to subsection (2), an applicant may apply in writing to the commission requesting a review of any of the following decisions of a public entity or private body in relation to a request for access to information –a)A decision refusing to grant access to information applied for; …(2)An application under subsection (1) shall be made within thirty days, or such further period as the commission may allow, from the day on which the decision is notified to the applicant.”

9. The tribunal is so fortified by the authority in Charles Apundo Obare & Another v Clerk, County Assembly of Siaya & Another, (2020) eKLR in which Justice R Aburili held;“30. It is important to note that the preamble to Access to Information Act stipulates that it is AN ACT of Parliament to give effect to Article 35 of the Constitution; to confer on the Commission on Administrative Justice the oversight and enforcement functions and powers and for connected purposes. The Act provides for an elaborate procedure for request for information and in the event that such request is not acceded to, section 14 thereof provides for the remedy in terms of review of the decision of the entity or person that has refused to provide access to the information that is requested.”

10. The respondent has taken up other matters as to why it ought not to be compelled to release the examination scripts. The tribunal now proceeds to address the matters based on the jurisdiction conferred upon it by section 31 (2) of the Legal Education Act, no 27 of 2012 which provides;“For the purposes of hearing an appeal, the tribunal shall have all the powers of the High Court to summon witnesses, to take evidence on oath or affirmation and to call for the production of books and other documents.”

11. Considering that said law accords the tribunal similar powers to the High Court when hearing an appeal to call for the production of books and other documents, the tribunal will examine the jurisprudential trend by the said court in similar instances. The tribunal is guided by the authority in C O & Others v Kenya National Examinations Council & Another, (2017) eKLR in which it was held;“The temptation to open up the exam bank however inviting it may seem, must be resisted. This is not to say that where a constitutional right is threatened the respondent will be shielded. No. What I am saying is that a violation of a constitutional right which would demand the opening up of the exam bank to verify results must in all circumstances be valid, clear and self-evident. It cannot be a subject of speculations, or a fishing expedition or an errand to find out any errors which are not self-evident.”

12. The appellants also never pointed out to the law requiring the respondent to release the examination scripts them for purposes of scrutiny. The tribunal is guided by the authority in Republic v Council of Legal Education exparte Edward Onwong’a Nyakeriga, (2017) eKLR in which Justice Odunga held;“In this case the applicant has failed to satisfy the court that there is a duty imposed upon the respondent by common law or by statute by which the respondent is obliged to produce the applicant’s November, 2015 ATP 101 – Criminal Litigation answer booklet/scripts specifically identified as CLE NO. 20131030 together with the relevant examination marking scheme for inspection and verification”.

13. Indeed the tribunal finds that the available jurisprudence based on various decisions of the superior courts over the exercise of the jurisdiction in matters of examinations is one that tilts towards the inclination to deny applications for the release of examination booklets. The tribunal adopts the same position declining the release or making of copies of the scripts to the appellants by the respondent.

Disposition.a.That the oral application by the appellants seeking to be granted access to the answer booklets/scripts for the November, 2021 Advocates Training Programme examinations premised on article 35 of the Constitution of Kenya, 2010 and the Access to information Act, no 31 of 2016 is declined for want of jurisdiction by the tribunal as the requisite jurisdiction on complaints in the said law based on section 14 therein is reposed upon the Commission on Administrative Justice.b.That the oral application to compel the respondent to give copies of the appellants examination scripts for the November, 2021 Advocates Training Programme examinations as considered by the tribunal based on section 31 (2) of the Legal Education Act, no. 27 of 2012 is found to be un-meritorious and is dismissed.c.That each party to bear own costs of the application.d.That any party aggrieved has the liberty to appeal to the High Court under section 38 (1) of the Legal Education Act, 2012 on a point of law.It is so ordered by the Legal Education Appeals Tribunal.

DATED AT NAIROBI THIS 24TH OF JUNE, 2022. ROSE NJOROGE – MBANYA - (MRS.) - CHAIRPERSONEUNICE ARWA - (MRS) - MEMBERRAPHAEL WAMBUA KIGAMWA (MR) – MEMBERSTEPHEN MUREITHI GITONGA (MR) – MEMBERI Certify this is a true copy of the original judgment of the Tribunal.GILBERT ONYANGO - REGISTRAR